The prolonged detention of Babar Ahmad is a failure of both politics and the law

As Babar Ahmad looks set to face extradition to the US for his alleged involvement with a jihadist propaganda website the eight years he spent in detention testify to a disgraceful manipulation of loopholes in the British legal system.

Yesterday
saw the European Court of Human Rights (ECHR) drive the final nail in the
coffin of Babar Ahmad’s 8 year fight against extradition to the US, dismissing
claims that a potential life sentence at ADX Florence would amount to torture or inhuman
and degrading treatment. It also
exhausts all potential remedies in the UK and European Courts. With the
exception of fleeing to the Ecuadorian Embassy, the only sliver of hope that
remains for him is a legal long shot – a private prosecution by Karl Watkins.

Babar’s
story is one punctuated by a number of glaring injustices, which those
sympathetic or not, would find hard to justify let alone excuse.

Of these,
one could cite the horrendous injuries he sustained on his initial arrest in
2003 amounting to no less than 73 – both his urine and ears bloodied. Doubt was
cast over his allegations of degrading religious abuse by the arresting officers,
who according to Babar, forced him in to the Muslim prayer prostration position
shouting ‘where is your God now?’ However the officers’ claim that the injuries
were self-inflicted, their notes in the immediate aftermath of the arrest going
amiss, evidence from even the prosecution’s medical experts, the officers’ own
eventual admission of wrongful conduct and payment of compensation, all indicate
to the reasonable and intelligent observer that Babar’s claims of severe
Islamophobic insults and violence are more than believable.

Babar’s
success in his civil action could be taken as a rare glimpse of justice in an
otherwise tragic story. However in typical OJ Simpsonesque manner, what the
officers admitted in the civil proceedings, they were acquitted of in the
criminal proceedings.

The most
uncomfortable aspect of Babar’s story though is how British and European justice
abjectly failed him as an individual and us as a society. The case presents an
affront to long standing fundamental and internationally agreed norms. In
Western and supposedly ‘civilised’ liberal democracies, innocence is presumed
until guilt proven. Yet Babar has not even been charged, but has spent 8 years
in detention. The Government nonchalantly relies on the technicality that this
is because his case was pending at the ECHR. But how is it that an individual who
the CPS chose not to prosecute for lack of evidence, could be detained
indefinitely because he sought redress at the ECHR? And why would the ECHR take
so long to deliberate over a case when each second delayed was a second added
to detention without charge let alone trial?

Consequently
Babar Ahmed has remained behind bars for 8 years without any allegation being
tested against him or any questions being asked of those requesting his
extradition. Surely not only does the UK have a responsibility to try its own
citizens whenever possible, but also to protect them in the face of flimsy
allegations and inadequate evidence. This constitutes a greater breach of
British sovereignty and betrayal of democratic trust then any Eurosceptic could
ever allege. Surely we have an interest to prevent British subjects being
extradited to a jurisdiction which has created establishments such as
Guantanamo so as to be immune from human rights obligations, sought to
legitimise torture in interrogations, instituted a practice of extraordinary
renditions and presided over some of the most grotesque abuses of prisoners in
Abu Ghraib and Bagram. Surely more than eyebrows should be raised as to the
feasibility of a fair trial in such a country, so drunken still with the rage
of crimes committed against it that it stops at little to lash out at anyone
perceived to be associated with its enemies.

But perhaps
the greatest tragedy in Babar’s story is that to this day he is still to have
his day in Court. At no point have the US’s allegations against Babar ever been
made known in their specific detail. The two substantive questions of his link
with a website and its content have never been posed nor contended in any
public court of law. Even the supposed bastion of human rights in Europe and
Babar’s last hope, the ECHR, was limited to considering whether Babar would
suffer from torture or inhuman and degrading treatment, if extradited. The very
fact that he was never charged by UK authorities meant he was unable to
challenge the substance of the case against him and thus the basis of his
extradition. He was not even able to challenge the non-reciprocal 2003 US-UK extradition
treaty, which absolved the US of any evidentiary requirements for extradition
requests to be granted by the UK.

Babar
Ahmad’s case continues to provide a sobering case-study that exposes the
failures of the legal system and political establishment, especially in the
face of overwhelming outcry by the British public, with more than 140,000
signing a petition to have Babar tried in the UK and the US-UK extradition
treaty reviewed.

About the author

Murtaza Shaikh is Head of Law at Averroes and Legal & Political Officer for the Initiative on Quiet Diplomacy. He also sits on the Human Rights Committee of the Law Society of England and Wales and is a PhD candidate at SOAS Law School. Currently he is seconded to the Organisation of Islamic Cooperation as Conflict Prevention and Resolution Fellow.

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